What Is Qualified Privilege?
Defamation cases are on the increase, particularly with social media. Find out about qualified privileged, one of the defences available for defendants.
With the wake of social media, defamation cases are on the increase due to the sheer nature of these platforms and their interactive component. An earlier article which focused on Defamation Law in Australia: 5 Things You Need to Know highlighted that in Australia it operates as a national uniform law. In that article, there was a point made that the onus is on the defendant to prove that they did not defame the plaintiff. If served with proceedings, the defendant will need to some of the following defences; truth, honest opinion, privilege (absolute and qualified) or triviality.
This article will focus on the defence of qualified privilege and how defendants use that in defamation cases. In order to understand qualified privilege look at any of the states’ legislation that has adopted the federal legislation.
Defence to Defamation
The defence of qualified privilege allows free communication in certain relationships without the risk of an action for defamation. Generally, where the person communicating the statement has a legal, moral or social duty to make it. Also the recipient has a corresponding interest in receiving it. Therefore, some examples of qualified privilege relationships include:
- Job application reference
- Answering police inquiries
- Communication between teachers and parents
- Officers of companies
- Employers and employees
- Traders and credit agencies
However, the privileged communication must relate to the business at hand. You cannot abuse this relationship for the purpose of relaying gossip. The defence is available even if it was a lie because the relationship exists. That does not give them licence to say untruths. Those who are making statements must believe what they say is true.
The legislation is similar across all states but for the purpose of this article, we will have a look at the New South Wales law in particular. The Defamation Act 2005 (NSW) section 30 identifies the defence of qualified privilege for the publication of defamatory matter to a person (the recipient) if the defendant proves that:
- The recipient has an interest or apparent interest in having information on some subject, and
- The matter is published to the recipient in the course of giving to the recipient information on that subject, and
- The conduct of the defendant in publishing that matter is reasonable in the circumstances
Important to note that in this instance, the person defamed can negate this defence if they show that the material was motivated by malice. In order for the defence to apply, the party making an otherwise defamatory statement must be subject to a duty to make the statement. In addition, the statement must be made to a party bearing an interest in receiving the information.
Qualified privilege is also part of the defence for defamation proceedings in the Corporations Act 2001 (Cth) section 89.
In any case of defamation, there should be a review of the defences available to the defendant. The defamation lawyers available in LawPath’s directory can ensure that the correct advice around these issues are provided.
Abhinav is a legal intern at Lawpath as part of the content team. Currently in his 3rd year studying a Bachelor of Laws at Macquarie University (Major in Banking, Corporate, Finance & Securities Law). He is keen to learn more about Mergers & Acquisitions in the future.